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  • It’s Critical: Legal Participatory Action Research

    This Article introduces a method of research that we term “legal participatory action research” or “legal PAR” as a way for legal scholars and activists to put various strands of critical legal theory into practice. Specifically, through the lens of legal PAR, this Article contributes to a rapidly developing legal literature on the “fringe economy” that comprises “alternative lending services” and products, including but not limited to pawnshops, check cashers, payday lenders, direct deposit loans, (tax) refund anticipation loans, and car title loans. As importantly, this article also contributes to the related fields of critical race theory, feminist legal theory, and critical race feminism by advocating legal PAR as a form of critical race/feminist praxis, which we employ, specifically, to address the ways in which race and gender remain inextricably linked to poverty and ever-widening economic inequalities and disparities. To demonstrate how legal PAR works in practice, we describe in this Article a local, community-based research project on predatory lending practices that we undertook from fall 2012 through summer 2013 in partnership with Public Allies Cincinnati, an AmeriCorps program whose goal is to identify, develop, and train a new “generation” of diverse community leaders and organizers. Further, we explain in this Article how and why our ongoing community-based research is grounded in theoretical commitments and values represented by critical race/feminism and the established, interdisciplinary field of participatory action research. Finally, we examine and reflect upon the challenges and benefits involved in doing legal PAR—both in practical and theoretical terms—in the context of our specific project, in the hopes that interested legal researchers, scholars, teachers, students, and activists will be inspired to develop legal PAR research projects of their own.

  • From Arbitrariness to Coherency in Sentencing: Reducing the Rate of Imprisonment and Crime While Saving Billions of Taxpayer Dollars

    Dealing with criminals and preventing crime is a paramount public policy issue. Sentencing law and practice is the means through which we ultimately deal with criminal offenders. Despite its importance and wide-ranging reforms in recent decades, sentencing remains an intellectual and normative wasteland. This has resulted in serious human rights violations of both criminals and victims, incalculable public revenue wastage, and a failure to implement effective measures to reduce crime. This Article attempts to bridge the gulf that exists between knowledge and practice in sentencing and lays the groundwork for a fair and efficient sentencing system. The Article focuses on the sentencing systems in the United States and Australia. The suggested changes would result in a considerable reduction in incarceration numbers, lower crime, and a reduction in the expenditure on prisons. The key concrete recommendations of this Article are that the criminal justice system should move towards a bifurcated system of punishment, reserving imprisonment mainly for serious sexual and violent offenses and reducing the terms of imprisonment in general.

  • Special Administrative Measures and the War on Terror: When do Extreme Pretrial Detention Measures Offend the Constitution?

    Our criminal justice system is founded upon a belief that one is innocent until proven guilty. This belief is what foists the burden of proving a person’s guilt upon the government and belies a statutory presumption in favor of allowing a defendant to remain free pending trial at the federal level. Though there are certainly circumstances in which a federal magistrate judge may—and sometimes must—remand a defendant to jail pending trial, it is well-settled that pretrial detention itself inherently prejudices the quality of a person’s defense. In some cases, a defendant’s pretrial conditions become so onerous that they become punitive and even burden his or her constitutional rights, including the Fifth and Sixth Amendment rights to due process and the effective assistance of counsel, respectively. Special Administrative Measures (SAMs) consist of a variety of confinement conditions that the attorney general may impose on an individual defendant at his or her discretion. Their purpose is to severely restrict communication by defendants with the demonstrated capacity to endanger the public through their third-party contacts. Although Congress did not create SAMs with terrorists in mind, their use in terrorism cases is almost routine. This Note explores the constitutional implications of SAMs when they are imposed on terrorism defendants who are detained pending trial. Specifically, my interview with criminal defense attorney Joshua Dratel sheds critical light on the deleterious impact SAMs have on a defendant’s Fifth Amendment right to due process and Sixth Amendment right to the effective assistance of counsel.

  • The Court Loses its Way with the Global Positioning System: United States v. Jones Retreats to the “Classic Trespassory Search”

    This Article analyzes United States v. Jones, in which the Supreme Court considered whether government placement of a global positioning system (GPS) device on a vehicle to follow a person’s movements constituted a Fourth Amendment “search.” The Jones Court ruled that two distinct definitions existed for a Fourth Amendment “search.” In addition to Katz v. United States’s reasonable-expectation-of-privacy standard, which the Court had used exclusively for over four decades, the Court recognized a second kind of search that it called a “classic trespassory search.” The second kind of search occurs when officials physically trespass or intrude upon a constitutionally protected area in order to obtain information. This work examines the concerns created by Jones’s ruling. This Article asserts that, by emphasizing property rights in bringing back the decades-old physical trespass test, Jones potentially undermined the Katz standard. Further, Jones added an inquiry into motivation by asking if the government committed the intrusion to obtain information, thus creating a subjective inquiry that is inconsistent with much of Fourth Amendment doctrine. Finally, in its attempt to distinguish its facts from earlier vehicle-tracking cases, the Court created a loophole in Fourth Amendment application that law enforcement could exploit in the future.

  • Ownership Without Citizenship: The Creation of Noncitizen Property Rights

    At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state constitutions, a significant number of which included property rights for noncitizens. Iowa, Wisconsin, California, and Michigan led the way, including these rights in their state constitutions prior to the Civil War. Through close examination of congressional debates, records of state constitutional conventions, and other historical texts, this Article places this significant legal reform in a broader historical context. Lawmakers succeeded in untethering notions of citizenship from notions of ownership, creating a more expansive vision of membership in the American polity. Property law was itself a form of immigration law, used not to expel migrants but rather to attract them and eventually, lawmakers hoped, to assimilate them as new Americans. The property reforms discussed here did not, however, result in property rights for all noncitizens; in fact, a majority of states today have some form of property restriction based on alienage. This Article suggests that an answer for the persistence of noncitizen property restrictions in American law lies in the nineteenth century. Reform efforts in this era held the seeds of restrictive policies that would develop later in the twentieth and twenty-first centuries, such as anti-Asian land laws and anti-illegal immigrant housing ordinances. Sources from the nineteenth century reveal that becoming “American” through property ownership was not a fully inclusive process; from the outset it was limited by assumptions about national origin, race and territorial location.

  • Ripples Against the Other Shore: The Impact of Trauma Exposure on the Immigration Process through Adjudicators

    Immigration is currently a hot topic; discussion of immigration reform and the problems in our current system appear in the news virtually every day. There is widespread consensus that our current immigration system is “broken,” but there is little agreement on why and even less on what should be done to fix it. These are difficult and important questions, involving many complex interrelated factors. While I do not hope and cannot aim to answer them completely in this Article, I will argue that in doing so we must consider an often overlooked and generally understudied issue: the effects of trauma exposure in our immigration process and specifically on our immigration adjudicators, that is, immigration judges, Board of Immigration Appeals members, and United States Citizenship and Immigration Services officers. Despite the little attention paid to the effects of trauma exposure, this is a topic of great importance. If our goal is to have an immigration system that not only operates fairly and efficiently but also has a positive effect on all participants-—noncitizens, attorneys, adjudicators, and other officials, among them—-we must consider the ways that our current system causes psychological harm to those involved. Evidence of this harm in our legal system is abundant. It can be seen in the stories of noncitizens caught up in our immigration process, in the high levels of distress suffered by attorneys and judges, in the criticism of immigration judges and other officials, and in the general dysfunction of our immigration system. At the same time, the causes for this harm are only infrequently discussed. This Article will highlight one cause of such harm: trauma exposure. I have multiple goals for this Article. First, I want to continue the important work begun by the many others cited throughout the article of normalizing the discussion of the emotional dimension of lawyering and its impact in and on our legal system. Second, I want to highlight the very significant impact of a particular aspect of this emotional dimension, trauma, on the immigration process by exploring its effect on immigration adjudicators. Finally, I intend to set the stage for a future Article that will consider reforms to the immigration system to better manage the impact of trauma exposure.

  • An Insurmountable Obstacle: Denying Deference to the Bia’s Social Visibility Requirement

    In the last fifteen years, the Board of Immigration Appeals has imposed a requirement that persons seeking asylum based on membership in a particular social group must establish that the social group is “socially visible” throughout society. This Comment argues that the social visibility requirement should be denied administrative deference on several grounds. The requirement should be denied Chevron deference because Congress’s intent behind the Refugee Act of 1980 is clear and unambiguous and, alternatively, the requirement is an impermissible interpretation of the statute. The requirement is also arbitrary and capricious under the Administrative Procedures Act. This Comment argues that courts should instead follow the United Nations High Commissioner for Refugees’ definition of a particular social group, in which social visibility is one of two methods to establish a particular social group. An adoption of this framework would serve Congress’s intent to adhere to the United States’ international obligations.

  • What the Sentencing Commission Ought to Be Doing Reducing Mass Incarceration

    Beginning in the 1970s, the United States embarked on a shift in its penal policies, tripling the percentage of convicted felons sentenced to confinement and doubling the length of their sentences. This shift included a dramatic increase in the prosecution and incarceration of drug offenders. As a result of its move toward long prison sentences, the United States now incarcerates so many people that it has become an outlier; this is not just among developed democracies, but among all nations, including highly punitive states such as Russia and South Africa, and also in comparison to the United States' own long-standing practices. The present rate of incarceration in the United States is currently "almost five times higher than the historical norm prevailing throughout most of the twentieth century." In sum, the United States has a serious over-punishment problem. Our country's imprisonment rate has acquired the name, "mass incarceration," meant to provoke shame about the fact that the world's wealthiest democracy imprisons so many people, even at a time when crime rates have diminished and crime is "not one of the nation's pressing social problems." Most criminal justice scholars agree that our current prison population is too large. They also agree that the impact of imprisonment on the crime rate is modest and that the speed at which people are released from prison bears little relation to the likelihood that they will remain crime free. Many prisoners can serve shorter sentences without triggering an increase in crime. As a result, we can reduce sentence lengths substantially without adversely affecting public safety.

  • Protecting Intangible Cultural Resources: Alternatives to Intellectual Property Law

    Cultural resources can be defined as "the tangible and intangible effects of an individual or group of people that define their existence, and place them temporally and geographically in relation to their belief systems and their familial and political groups, providing meaning to their lives." The field of cultural resources includes tangible items, such as land, sacred sites, and religious and finerary objects. The field also includes intangible knowledge and customs, such as tribal names, symbols, stories, and ecological, ethnopharmacological, religious, or other traditional knowledge. The tangible cultural resources of tribes can fall under the protection of statutes such as the Archeological Resources Protection Act of 1979 and the Native American Graves Protection and Repatriation Act, 1990 (NAGPRA). The protection of intangible cultural resources, however, is less codified. The provision of legal protection for intangible cultural resources has focused almost entirely on either linking such protection to human rights or defining intangible culture as intellectual property (IP). Early work on defining intangible cultural resources as IP was conducted jointly by UNESCO and the World Intellectual Property Organization (WIPO), which led to the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985). Work by WIPO continues today through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This is complemented by a growing body of law, mostly in other countries, using property law to halt cultural appropriation from indigenous communities. However, as it stands, IP law, in general, may be a poor fit for tribes. This Comment explores alternatives that exist in the form of regulation of research and tort actions against researchers who violate these regulations. It is premised on the observation that one of the primary means by which culture has been appropriated from American Indian communities has been through social scientific research. Indians are among the most heavily studied groups in fields like medicine, public health, and, recently, genetics. Yet anthropology, more than any other discipline, has made American Indians the subjects of research.

  • Isolated Confinement in Michigan: Mapping the Circles of Hell

    For the past twelve months, there has been a burgeoning campaign to abolish, or greatly reduce, the use of segregated confinement in prisons. Advocates for the campaign call such classifications "solitary confinement" despite the fact that in some states, like New York, prisoners in these cells are often double-celled. The Michigan Department of Corrections, as well as other prison systems, uses labels such as "segregation," "special management," "special housing," and "observation" for these classifications. Prisoners ordinarily use traditional terms, such as "the hole." In this Essay we will refer to such restrictive classifications as "segregation" or "segregated confinement." Our perspective on the problems with such classifications comes from serving as counsel for plaintiffs in Hadix v. Caruso. Hadix is a long-running class action regarding what was once called the State Prison of Southern Michigan; in this case, we are attempting to enforce remaining portions of a 1984 consent decree to which the Michigan Department of Corrections (MDOC) is subject. Part of what we describe in this Essay is the harm that segregated confinement has inflicted on mentally ill members of the Hadix class. The evidence of harm to mentally ill prisoners from segregated confinement that we found was entirely predictable. It has long been known that segregated confinement results in the deterioration of the mental health status of many prisoners so confined and the related deterioration of their ability to interact safely with other persons once released from segregation. This Essay, however, will not focus particularly on the harms caused by the propensity of segregated confinement to engender or exacerbate mental illness. We will describe examples drawn from our own experiences and other litigation in Michigan documenting the potential for lethality from assigning medically vulnerable prisoners to segregated confinement - an issue that has received less attention in the national campaign against the use of solitary confinement. We will also suggest explanations for why assigning such prisoners to segregated confinement is so predictably dangerous, as well as why the MDOC has been so slow to recognize these dangers.